Take the Fifth

Designated for publication

• Clouse v. Southern Methodist University, 24-10860, appeal from N.D. Tex.
  • Higginson, J. (King, Higginson, Wilson) (oral argument withdrawn), Title IX, costs
  • Affirming costs award to defendant on plaintiffs’ Title IX claims.
  • Eight former student-athletes on SMU’s women’s rowing team sued the university for gender-based discrimination under Title IX and negligence under Texas law, alleging that substandard coaching, athletic training, and medical treatment caused serious hip injuries sustained between 2012 and 2015. The district court granted summary judgment to SMU, finding the claims of eight plaintiffs time-barred, a ruling the Fifth Circuit previously affirmed. SMU then moved for $221,383.53 in costs as the prevailing party under Federal Rule of Civil Procedure 54(d)(1), and the district court awarded $184,033.11 after reducing some categories of expenses. The plaintiffs appealed the cost award.
  • The Fifth Circuit affirmed the district court’s award in full. First, the court held that SMU qualified as a prevailing party because it obtained summary judgment with prejudice as to eight of the nine plaintiffs, materially altering the legal relationship between the parties. Second, the court found that none of the five Pacheco factors—limited financial resources, misconduct, close legal issues, public benefit, or enormous financial resources—weighed in favor of denying costs to SMU. Third, the court upheld the district court’s determination that SMU met its burden to prove the necessity and amount of its costs, including for both video and written deposition transcripts under 28 U.S.C. § 1920(2) and for copying and exemplification costs under § 1920(4). Notably, the court joined several sister circuits in holding that a prevailing party may recover costs for both a video recording and a written transcript of a deposition when each is necessarily obtained for use in the case.

• U.S. v. Villafana-Mondragon, 25-20018, appeal from S.D. Tex.
  • Duncan, J. (Jones, Duncan, Douglas) (no oral argument), Douglas, J., dissenting; criminal, supervised release
  • Affirming imposition of two supervised release conditions that the Court held were “properly pronounced … by orally adopting them from the Presentence Investigation Report (PSR)….”
  • Judge Duncan, writing for the majority, affirmed the sentence of Nestor Villafana-Mondragon, who pled guilty to illegal reentry after a felony conviction under 8 U.S.C. § 1326(a) and (b)(1) and was sentenced to 75 months’ imprisonment.  On appeal, Villafana-Mondragon challenged two discretionary supervised-release conditions—one requiring him to report immediately to ICE (and to probation within 72 hours if he legally returned after deportation) and another requiring him to obtain proper work authorization from ICE—arguing they were not adequately “pronounced” at sentencing as required by United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc).  Applying plain-error review because Villafana-Mondragon never objected despite having the PSR well before sentencing, the majority held that the district court properly pronounced the conditions by orally adopting the PSR and its appendix at the hearing, which is the method Diggles expressly recommends.  As to the argument that Diggles also required the court to verify the defendant had personally reviewed the PSR with counsel under Federal Rule of Criminal Procedure 32(i)(1)(A), the majority assumed without deciding that such verification was part of the Diggles framework and found the requirement was satisfied: Villafana-Mondragon and his counsel had access to the PSR for at least a month, counsel filed no objections, and the district court specifically asked defense counsel whether she had gone over with the defendant the fact that no objections had been filed, to which counsel responded affirmatively—rendering any claim of inadequate notice meritless.
  • Judge Douglas dissented, contending that the district court failed to satisfy the fundamental requirement set out in Diggles that a sentencing court must verify that the defendant himself has reviewed the PSR with counsel before orally adopting discretionary supervised-release conditions.  In her view, the district court’s question to defense counsel—asking only whether counsel had discussed with Villafana-Mondragon the fact that no objections had been filed—amounted at most to an “implicit confirmation” from counsel, which falls far short of the direct verification Diggles demands as the “first order of business” at sentencing.  Because the court never confirmed that Villafana-Mondragon personally reviewed the PSR or its appendix, Judge Douglas concluded he was not given adequate notice or a meaningful opportunity to object, and therefore the proper standard of review should be abuse of discretion rather than plain error.  She further noted that this court’s own precedent in Rivera-Hernandez found abuse of discretion under virtually identical facts, and she emphasized the distinction drawn in Esparza-Gonzalez between the record supporting that counsel had the opportunity to review the PSR and the record supporting that the defendant actually reviewed it—a distinction she found dispositive here. 

• U.S. v. Garcia, 24-40673, appeal from S.D. Tex.
  • Elrod, C.J. (Elrod, Smith, Wilson) (oral argument), criminal, search and siezure
  • Affirming conviction of possession of a firearm by a felon, upholding denial of motion to suppress based on the traffic stop that preceded the search.
  • The Fifth Circuit affirmed the district court’s denial of Defendant Jesus Eloy Garcia’s motion to suppress evidence obtained during an investigatory stop conducted by the Laredo Police Department on June 9, 2020. Garcia, a convicted felon charged with being a felon in possession of firearms under 18 U.S.C. §§ 922(g)(1) and 924(a)(4), argued that the stop lacked reasonable suspicion because the underlying BOLO was based solely on a single witness report of shots fired from a black Cadillac SUV. The Fifth Circuit rejected this argument, finding that the BOLO was compiled from multiple investigative sources—including the eyewitness account, the discovery of shell casings, Officer Garza’s identification of the suspected vehicle, and a prior traffic stop that identified the vehicle’s occupants—and contained sufficient detail (color, year, make, model, and license plate number) to establish reasonable suspicion for the stop. The court also rejected Garcia’s collective-knowledge-doctrine challenge, finding that the officers communicated adequately through dispatch and their in-vehicle computers, and held that because the stop was lawful, Garcia’s derivative arguments for suppression of bodycam footage and screenshots likewise failed.

Unpublished decisions

• U.S. v. Muller, 25-10429, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, jury instructions
  • Affirming conviction of transmitting a threat by interstate communication and retaliation against a federal official.

• U.S. v. Jimenez, 25-10766, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, ineffective assistance of counsel
  • Affirming denial of defendant’s ineffective assistance of counsel claim on direct appeal.

• U.S. v. Leonard, 25-10990, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon.

• Bwondara v. Tarrant County, 25-11263, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), prisoner suit
  • Affirming dismissal of Texas inmate’s claims.

• U.S. Bank National Association v. Lamell, 25-20056, appeal from S.D. Tex.
  • Higginson, J. (Southwick, Higginson, Douglas) (no oral argument), foreclosure
  • Affirming judgment related to foreclosure on property.

• U.S. v. Dowell, 25-20161, appeal from S.D. Tex.
  • per curiam (Graves, Ho, Duncan) (no oral argument), criminal
  • Dismissing as frivolous appeal from conviction of conspiracy to advertise child pornography.

• Vuong v. U.S. Department of Veterans Affairs, 25-20199, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Stewart) (oral argument withdrawn), Title VII, employment discrimination
  • Affirming in part and reversing in part summary judgment dismissal of plaintiff’s employment discrimination suit, affirming the dismissal of the discrimination and retaliation claims, but reversing the dismissal of the hostile work environment claim; and remanding for further proceedings.

• Murillo v. Bisignano, 25-40630, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), social security
  • Affirming denial of disability benefits.

• U.S. v. Luna, 24-40702, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Affirming conviction of conspiracy to transport an illegal alien and transportation of an illegal alien.

• U.S. v. Flanagan, 25-50264, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming 235-month sentence on conviction of possession with intent to distribute a quantity of methamphetamine.

• U.S. v. Hernandez-Avila, 25-50641, c/w 25-50645, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Reyna v. Texas Medical Liability Trust, 25-50795, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), insurance, Americans with Disabilities Act, unfair trade practices, prisoner suit
  • Affirming dismissal of state prisoner’s far-ranging complaint.

• Morningstar v. Kroger Co., 25-60508, appeal from S.D. Miss.
  • per curiam (Jones, Richman, Ramirez) (no oral argument), § 1983, Rule 60(b)
  • Dismissing as frivolous appeal from dismissal of civil rights suit.